286 Review Articles / Historical Materialism 17 (2009) 237299

Homo Juridicus: On the Anthropological Function of the Law, Alain Supiot, London:
Verso, 2007

Abstract
In Homo Juridicus, Alain Supiot argues that law has an anthropological function constituting
people as rational beings by linking together their biological and symbolic dimensions. The law
also serves a dogmatic function, embodying Western values and serving as a bar to totalitarian
scientism and tempering the excesses of technology in the workplace. However, the anthropological
function of the law has been undermined by the advance of science and economics and
widespread privatisation, contractualisation and deregulation. This article contests Supiots
claims, especially as regards Marxism, counterposing his position to that of Bolshevik legal
theorist Evgeny Pashukanis. Pashukaniss insights into the relationship between law and
capitalism are used to re-frame Supiots argument and to undermine his contention that
globalisation is inimical to law. Pashukanis is also invoked to contest the claims that the
anthropological function of the law is the only alternative to totalitarianism and that law serves
to humanise technology.

Keywords
Law, Pashukanis, jurisprudence, Alain Supiot

Homo Juridicus is not an easy work to pin down, although primarily a work of legal theory,
it draws on anthropology, sociology, social theory and philosophy. This eclecticism also
makes the book somewhat dicult to review, as it veers from defence of the law, to polemic
against scientism, to concrete analysis of contemporary French labour-law. However, it is
possible to trace a consistent argument throughout this work, one that Marxists would do
well to address.
Supiot begins by outlining his particular philosophical vision. Human beings, he writes,
are metaphysical animals who inhabit not only a universe of things but also a universe of
signs (p. vii). A sign is anything in which human beings have invested meaning, including
material products and even other humans. We apprehend these meanings through our
senses and it is these meanings that give sense to life. In order to gain access to these
meanings, we need language, which is the primary resource of the dogmatic beliefs
necessary for the constitution of the subject (p. viii). The only way to gain the autonomy
that comes from language (the ability to think and express ourselves freely) is to submit to
the radical heteronomy of the limits that give words meaning.
Before we can be free beings, able to say I, we are already bound by words, which tie us
to other people. Supiot argues that here the bonds of law and speech come together and
endow our lives with meaning; this is the anthropological function of the law:

It is by transforming each of us into a homo juridicus that, in the West, the

biological and symbolic dimensions that make up our being have been linked
together. The law connects our innite mental universe with our nite physical
existence and in so doing fulls the anthropological function of instituting us as
rational beings. (p. ix.)

Koninklijke Brill NV, Leiden, 2009 DOI: 10.1163/156920609X436234

 Review Articles / Historical Materialism 17 (2009) 237299 287

For Supiot, law is based on dogma (indemonstrable propositions) and serves a dogmatic
function itself, insofar as it posits human beings as rational and autonomous. Supiot does
not think that dogma is necessarily negative; instead, it is a resource that allows human
beings assign meaning to their lives (p. 186). Indeed, for Supiot, dogma serves the role of
closing the gates to lunacy (p. xvii).
Supiot argues that our Western legal conception of the human being as an abstract
universal, born free, endowed with reason, and equal among equals is the result of a drawn-
out historical process stretching from the Renaissance to the Enlightenment (p. 11). The
central moment here is when God disappears as a formal reference-point in Western politics,
and the state and law take His place (p. 12). However, although God is formally displaced,
His residue remains and the Western (legal) human being is conceived in His image. This
imago dei rests on three dualistic pillars man as an individual, a subject and a person.
Man is an individual insofar as he is unique and identical. Man is unique in the sense
that he is considered a whole, distinct and separate from that which surrounds him.
Yet each man is also identical to all other men, insofar as all human beings share the
common quality of being human. Supiot sees this as a fundamentally Christian idea. Here,
since all men are made by God in His image, they are brothers cast in the same image and,
as such, identical. Yet, at the same time, God has given each man free will, which when
exercised makes every man unique. Man is a subject insofar as he is capable of causing
things, although this can embrace many dierent actions, man is primarily a cause through
words, the practical outcome of this being law. Supiot argues that Christianity is the only
religion in which any individual is able to appropriate the Word and create law (p. 17).
However, human beings are also bound by subject to law; again, Supiot sees shades of
Christianity here, which he characterises as the only religion in which God creates the laws
of nature and is also bound by them.
The nal element of this conception is man as a person. Western legal systems typically
separate persons from things, whilst things may be bought and sold with impunity, persons
may not. Supiot argues that this concept of personality is derived from the Christian notion
of God as a being who only gains personality when incarnated in Christs esh. Christianity
generalised this conception to all human beings, whose immortal souls are realised through
their earthly bodies. In non-Christian religions, this relationship is reversed, with the bodily
aspect being subsumed beneath the spirit (p. 24). These three pillars are the dogmatic legal
conception of the person that structures our thought. However, because these pillars have
a dogmatic foundation that is to say that they are treated as axiomatic and so asserted
rather than argued for they can always be challenged, either through the assertion of a
new dogma, or simply through arguing that they are without foundation. This means that
it is necessary for a third party to ground them, acting as a guarantor of their existence, and
historically, this guarantor was religion, but it is now primarily the state.
Of course, none of this argument is particularly new, and the idea that the Western legal
thought is a secularisation of Christian theology has been expressed by both Left1 and the
Right.2 Perhaps Supiots most unique contribution in this respect is his argument against
scientism. At various points during his philosophical exposition, Supiot compares the

1. Engels 1957, p. 268.

2. Schmitt 2006, pp. 3652.
288 Review Articles / Historical Materialism 17 (2009) 237299

legal approach to that of science. He argues that, whereas legal dogma sees each person
as an inviolable individual (and as such protected), science, both its biological and social
variants, sees man as purely biological or the product of social structures, meaning they no
longer view the person as sacrosanct. Those who believed in such materialism viewed
themselves as the instrument of a higher law to which state and law were subject (p. 57),
meaning that certain groups could be eliminated as and when science demanded it. Thus,
for Supiot, both Nazi racialism and Marxist materialism in neglecting the anthropological
function of the law lead inexorably towards totalitarianism.
After the Enlightenment, European commentators assumed that the contract would
become universal, seeing it as the mark of a civilised society. Following decolonisation, it
seemed like this prediction might come true, as many countries adopted the contract.
However, Supiot notes that often these countries adopted the contract as a necessary response
to European expansion, with the contract remaining alien to their own cultural traditions,
which emphasised social harmony (p. 82). Somewhat unsurprisingly, Supiot traces the
notion of contract as an abstract legal category to Western Christianity. He argues that the
notion of pacta sunt servanda (the duty to honour ones promises) was invented by medieval
canonists as a general moral duty of all Christians. It was premised on the idea that there
was one omnipotent God before whom none could speak falsely. Here, the idea of the third-
party guarantor emerged once again, although the contract form appears to be a horizontal
relationship between equals, it always requires a vertical dimension, in its secularised form
this is taken by the state (p. 93).
The dierences between Western and Eastern culture lead Supiot to posit the dierence
between contractualism and contractualisation. The former rests on a political theory of
social contract, whereas the latter simply denotes the objective extension of contractual
techniques. This helps explain how it is that a country can adopt some contractual
techniques, yet curtail their use internally and maintain their own cultural traditions. This
division also illustrates the new justication for the extension of the contract, it is no
longer based on a theory of social contract, but, instead, on economic analysis;
contractualisation becomes synonymous with globalisation (p. 86).
After establishing this theoretical and historical groundwork, Supiot moves on to more
concrete analysis of the law. Having noted the central role of the state in guaranteeing both
contract and legal identity more generally, Supiot goes on to chart its steady decline in the
age of globalisation. Internationally, the state is now viewed as an obstacle to exchange, with
its material power (budget-allocation) and spiritual mission (spreading free trade) taken
over by international bodies (p. 102). This allows the contract begins to break free of its
bounds, resulting in widespread deregulation and contractualisation. Furthermore, with
the states role as guarantor increasingly under threat, numerous regulatory bodies spring
up, designed to oversee the contracts of particular specialised sectors. This means that the
abstract nature of the contract as a general category begins to erode, as do equality and
freedom of contract. Supiot argues that the net result of this has been the emergence of a
new type of contract, the purpose of which is to legitimate the exercise of power (p. 104).
These contracts are characterised by the subordination of the activities of one party to the
interests of another party:

What all these versions of the contract have in common is that they place a
person whether real, or legal, private or public within the sphere of power of
 Review Articles / Historical Materialism 17 (2009) 237299 289

another person, but without thereby infringing, at least in formal terms, the
principles of freedom and equality. (p. 106.)

Supiot argues that this is a hybrid of contract and law, which represents a re-feudalisation
of the law, since it is analogous to the feudal relation of vassalage, whereby a free man was
subjected to the interests of many lords (p. 125). Having made such an extraordinary claim,
Supiot moves on to consider the relationship between law and technology.
Supiots basic argument is that law and technology have had a mutually determining
relationship, in which each reinforces developments in the other. Law occupies a very
special position, insofar as it placed between humans and their representations . . . and thus
fulls the function of dogma it imposes and interdicts and is therefore a technique of
humanization of technology (p. 117). For instance, when electric and gas lighting freed
industrial work from the rhythms of nature the law humanized this by limiting the length
of the working day (p. 133). However, according to Supiot, technology has moved away
from centralization and towards networked forms of organisation. This has led to changes
in the organisation of the work-force, which is now permanently on call owing to email,
the internet and cellular phones. Consequently, the network of technology has led to a
network structure in the workplace, transforming labour-law accordingly. This is Supiots
feudalism, where [s]ubordination is not enough, and workers who simply obey are no
longer desirable instead they must behave as though they were independent and wholly
accountable (p. 125). Law must humanise this situation by reconstituting the working
community and re-establishing the division between free time and work time (p. 134).
This network eect is not conned to the sphere of work. Supiot argues that, following
to the World Wars, humanity lost faith in sovereign power. Henceforth, it was necessary
to justify uses of power, which was also to be decentralised (p. 152). Legislative power
was increasingly subject to proceduralization, meaning that legislators withdrew from
making substantive decisions (e.g. about whether it is correct to re someone or not) and
instead simply created procedures (such as consultation, disciplinary hearings etc.). Side-
by-side with this, the content of government-legislation is increasingly left empty, to be
lled in later by negotiation between certain interest-groups, a process which has been
intensied by the European Commission and its framework agreements. Thus, with the
decreasing legitimacy and power of the state, there has been a shift from government (where
the state directly intervenes in given areas) to governance (where the state sets standards and
targets) (p. 149).
Supiots nal chapter considers the question of human rights. He argues that, as a
global dogma, human rights are necessary to bind humanity and prevent it from sliding
into collective madness (p. 186). However, this universal potential is undermined by the
fact that the human in human rights is the Western imago dei. Furthermore, European
states suer from a hangover of Roman law, which had ambitions of a universal ius commun,
leading them to impose their universal values on the rest of the world. In order to arrive at
a truly universal set of human rights, it is necessary to avoid the three fundamentalisms
messianism, scientism and particularism and recognise that various national legal dogmas
can enter into negotiation (p. 212). Supiots ultimate solution is to attempt to temper the
processes of globalisation through a concept of solidarity, which will allow the creation of
a global welfare-state. In practice, Supiot seems to default to a rather limp reformism,
calling for a social clause in the World Trade Organisation, which would allow states
290 Review Articles / Historical Materialism 17 (2009) 237299

to take their cases to the various international social bodies (for example the ILO and
UNESCO) (p. 214).
This summary cannot possibly do justice to the richness and depth that characterise
Supiots work. Indeed this richness is sometimes its failing. The structure of the rst four
chapters of the book is extremely chaotic, with numerous asides criticising scientism,
materialism or economism. Whilst these polemics clearly do have their place, the book
would perhaps have been better served by placing them in a separate chapter, or at the very
least towards the end of the initial exposition. The books use of sources is also quite
problematic. As is common with contemporary theoretical work, Supiot does not engage
with large-scale documentary or statistical evidence. Rather, he seems content to select
certain rather esoteric events, practices or sources in order to illustrate his points.
Supiots work is not quite as original as he thinks it is. The questions that Supiot deals
with, the answers he gives to them, and the central role that Supiot assigns to law, place
him rmly within the tradition of bourgeois liberalism.3 The main problematic of Supiots
work whether it is possible to reconcile the coercion of the law with freedom is one
which has always plagued liberalism. The answer that Supiot poses here that such coercion
is necessary to create a rational community of free individuals places him rmly within
the liberal tradition; indeed, it is very reminiscent of Locke.4 This means that Supiots
claims as to the lack of attention legal scholars pay to the anthropological function of the
law ring slightly hollow, (p. 53) as arguments that law is vital for constituting a particular
type of rational community occupy a prominent, if not dominant place in contemporary
Anglo-American legal and political philosophy.5

Misrepresenting Marxism
This liberalism perhaps explains Supiots hostility to Marxism. Whilst Supiot often
compliments Marxist approaches to the law, in his haste to assimilate them into his narrative
of totalitarian scientism he mischaracterises them, sometimes distorting them beyond all
recognition. Most egregious in this respect is his treatment of Evgeny Pashukanis, Bolshevik
revolutionary and pioneering Marxist jurist; Supiot writes:

Materialist critique was the rst to treat law as nothing but a technique of power
serving the interests of the powerful, such that only laws ratied by science should
be binding on the people. This idea was brilliantly formulated by Pashukanis at

3. Braun 2007, p. 582.

4. [H]owever it may be mistaken, the end of law is not to abolish or restrain, but to preserve
and enlarge freedom: for in all the states of created beings capable of laws, where there is no law,
there is no freedom, Locke 1824, p. 162.
5. It is certainly the case that contemporary Anglo-American legal positivism has shied away
from such a position, and such positivism is the dominant form of scholarship in the legal
academy. But there is also a good deal of non-positivist jurisprudence and political theory which
grants law a vital role in the constitution of a society of rational individuals. Although these
theories are not identical to Supiots, they certainly take the anthropological function of the
law seriously, see e.g. Dworkin 1998, especially pp. 195216 and Finnis 2005, especially
pp. 13460.
 Review Articles / Historical Materialism 17 (2009) 237299 291

the time of the Russian Revolution, and was further developed by those for whom
the idea of justice had no place in a scientic analysis of law (even if they
themselves were often aware of the very real injustices produced by existing legal
systems). (p. xix.)

On almost every level, this description does violence to materialist critique of the law,
especially Pashukaniss work. Pashukanis never advanced the idea that law was nothing but
a technique of power. Such a denition could perhaps be found in the work of Stuchka,
Pashukaniss mentor and contemporary, who dened law a system or order of social relations
in which the determinative element is the interest of the ruling class which is supported
and safeguarded against violation by the organization of the dominant class . . . the state.6 For
Pashukanis, this equation of law with class violence was unsatisfactory, since it left the law
indistinguishable from social relations in general.7
Pashukanis argued that this position cannot explain what is distinctive about law as a
social relationship. Instead, legal inquiry had to look for the law-ness of law,8 this cannot
be found in the content of law (which after all could be the content of any other social
relationship), or its function (which could be fullled by some other social relation). For
Pashukanis legal theory must recognise that under certain conditions the regulation of
social relationships assumes a legal character;9 the task of the Marxist jurist is to identify the
conditions which gave rise to this legal character (or legal form as it is generally known)
and to delimit what this character entails. Rather than collapse law into nothing but a
technique of power, then, Pashukanis argued it was necessary to understand law in terms
of its internal structure, lest it be dissolved away into some vaguer notion of social
control.10
This failure to engage with Pashukaniss actual ideas is a great shame, as his theory has
much to contribute to Supiots. The legal form is the main site of Pashukaniss theoretical
excavations and, in this respect, his basic materialist strategy is to correlate commodity
exchange with the time at which man becomes seen as a legal personality.11 In order that
commodities may be exchanged their guardians must place themselves in relation to one
and another, as persons whose will resides in those objects, this means that they must
mutually recognise in each other the rights of private proprietors.12 As such, commodity-
exchange requires that each party to the exchange recognise the other as his equal, at least
in formal, abstract terms. However, commodity-exchange is also a contentious relationship,
in which each party wishes to possess the commodities of the other, for the lowest possible
price. Consequently, disputes frequently arise in the course of commodity exchange and
these disputes require a specic form of social regulation to deal with them:

6. Stuchka 1988, p. 27.

7. Pashukanis 1980, pp. 612.
8. Miville 2005, p. 289.
9. Pashukanis 1980, p. 58.
10. Arthur 1978, p. 12.
11. Arthur 1978, p. 13.
12. Marx 1999, p. 51.
292 Review Articles / Historical Materialism 17 (2009) 237299

Where there is even the potentiality of disputation between the sovereign, formally
equal individuals implied by commodity exchange . . . a specic form of social
regulation is necessary. It must formalise the method of settlement of any such
dispute without diminishing either partys sovereignty or equality. That form is
law, which is characterised by its abstract equality . . .13

Thus, the legal form is one which posits human beings (and other entities which act through
it) as abstract, formally equal legal subjects. As the exchange of commodities becomes the
primary force in the economy, so too does the legal form become the predominant form of
social regulation. Concomitantly with this, the legal form becomes ever more abstract,
divorced from the concrete relationships that historically gave rise to legal relationships and
[e]ach man became a man in general, all labour was equated with socially useful labour in
general, every subject became an abstract legal subject.14
Hence, rather than treating law as nothing more than a technique of power, Pashukanis
takes law seriously on its own terms, as a specic form of social regulation which posits
individuals as legal subjects. The parallels with Supiots work should be evident here. What
is more, the legal form that Pashukanis describes bears a striking resemblance to Supiots
homo juridicus. Where Pashukanis sees the legal subject as an abstract, formally equal
individual, Supiot sees it as an abstract universal, born free, endowed with reason, and
equal among equals. It is a shame that Supiot never engages fully with Pashukaniss work,
as its close proximity to his own work allows us to see some of the substantive criticisms
that might be levelled against Homo Juridicus.
One of the most important dierences between Supiot and Pashukanis is that, where
Pashukanis sees the legal form as primarily a product of commodity-exchange, and therefore
the market, Supiot sees it as originating Western Christianity. In order to support his
position, Supiot frequently cites non-Western traditions that have no notion of law or
contract in the sense that we understand it. However, the non-Western traditions that
he cites are almost exclusively precapitalist. Supiot tends to explain the increasing
marginalisation of these cultural practices as the forced response to the introduction of
an alien culture, that of the West (p. 82). The problem here is that, when dealing
with imperialism or globalisation, it is very dicult (if not impossible) to disentangle the
economic from the cultural and the political, since the spread of the market in the
periphery has always been tied up with political coercion from the core. Nevertheless,
the fact remains that the spread of homo juridicus to the periphery has been tied up with the
spread of capitalist property-relations. The question is perhaps one of primacy. Did the
West spread its cultural practices simply because of its belief in their supremacy, or was it
laying the groundwork for economic exploitation?15

13. Miville 2005, p. 75.

14. Pashukanis 1980, p. 81.
15. This question is made ever more complicated by the fact that if the former was correct, it
might nonetheless be the case that Western belief in its own superiority was itself a component
of an ideology whose purpose was to justify the exploitation of the periphery. Indeed, the
supposed primacy of the cultural motive might serve to better buttress this justication, as it
allows imperial expansion to be portrayed seless, moral mission.
 Review Articles / Historical Materialism 17 (2009) 237299 293

If the question is dicult to answer with respect to the spread of homo juridicus to the
colonies, it is easier in terms of its internal consolidation. Again, Supiot emphasises laws
religious roots, focusing in particular on the role of medieval canonists in developing the
abstract concept of the contract. As discussed above, Supiot argues that the belief in one
omnipotent God was vitally important here. This seems unconvincing, especially since
Supiot fails to discuss the very real material power of the Church in the thirteenth century
as opposed to the strength of religious belief among Christians. Furthermore, culture alone
cannot explain how the supposedly Christian ideas of law and contract were able to survive
secularisation, and indeed grow to become the predominant forms of social regulation.
Here, it seems that Pashukanis has the more convincing argument, that the legal form was
spread through the growth of market-relations, which were part and parcel of the process
of secularisation. Whilst Supiot does recognise the close proximity of law and the market
(p. 94), he never seems to draw the connection between the preservation and spread of
homo juridicus and the rise of capitalism.16
This also renders problematic some of Supiots claims about the Law and Economics
movement. For Supiot, Law and Economics is misguided insofar as it ignores laws role as
a shared heritage (p. xxi). However, this critique loses force when one considers laws close
connection to the economy. It becomes very dicult to counterpose homo economicus to
homo juridicus, when homo juridicus is nothing but an abstract commodity owner elevated
to the heavens.17 In fact, as Bob Fine notes [c]lassical jurisprudence arose in close
conjunction with studies of the economic foundation of capitalist society conducted by
classical political economy.18
This lack of attention also taints Supiots practical proposals for reforming the law. Supiot
places great stock in the African concepts of peoples rights and solidarity (p. 206) as an
antidote to international laws complicity in globalisation. Supiot seems completely unaware
of the fact that in the 1960s, 1970s and 1980s the Third World was successful in
incorporating its concept of peoples rights into a number of international instruments.
However, rather than rolling back globalisation, these rights ended up strengthening the
hold of international institutions over the global South and buttressing development-
discourse.19 Recognition of laws structural connection with capitalism helps us understand
the ultimate limitations of any legal strategy.
Pashukaniss work might also lead us to question Supiots claims about the anthropological
function of the law. On the one hand, Supiot views law as a shared heritage which serves
as a reference-point for individual reason, yet on the other hand, he views law as creating
subjects who are complete, self-contained individuals (p. 16). Thus, Supiot is faced with the
classical liberal paradox: in a society of diverse, unconnected individuals, it is necessary to
create some kind of stable reference-point. However, this stable reference-point has to be
one that creates and guarantees these self-contained individuals. But, if the content of this
shared heritage does nothing more than guarantee individual diversity then how can it serve

16. For a useful historical description of this relationship (although one lacking in theoretical
sophistication) see Tigar and Levy 2000.
17. Pashukanis 1980, p. 81.
18. Fine 2002, p. 10.
19. Rajagopal 2003.
294 Review Articles / Historical Materialism 17 (2009) 237299

as a shared reference-point for these individuals?20 This paradox constantly recurs in the law,
as Pashukanis notes:

Law is simultaneously a form of external authoritative regulation and a form of

subjective private autonomy. The basic and essential characteristic of the former
is unconditional obligation and external coercion, while freedom is ensured and
recognized within denite boundaries. Law appears both as the basis of social
organization and as the means for individuals to be disassociated, yet integrated
in society.21

As previously noted, Supiot assigns law an incredibly important role, arguing that it is able
to guarantee human reason, by ascribing meaning to human existence. The recognition
that human reasoning is shaped and guided by its social context is an important one, and
Supiot is right to emphasise this. What we might question is how important law is to this
process, and whether law has a necessary role in the institution of human reason. Marxists
have long recognised that the ideological importance of law extends far beyond its
immediate, narrow sphere and that it has an important role in shaping human subjectivity.22
It does, however, seem doubtful that we can ascribe this role exclusively, or even primarily
to law. In truth, Supiot does not do this; indeed, part of his polemic is despair at the decline
in the role of law in favour of economics. What Supiot does seem to suggest is that neglecting
the anthropological function of law, or replacing it with science, tends inevitably towards
totalitarianism (p. xix).
This is another area in which Supiots failure to engage with the actual arguments of
Marxists severely detracts from his work. According to Supiot, Pashukanis argued that only
laws ratied by science should be binding on the people. This is a distortion. It is true that
Pashukanis did distinguish between law and what he called technical regulation but this is
not as simple as Supiot supposes. For Pashukanis, the basic assumption of legal regulation
is . . . the opposition of private interests, to this he contrasts technical regulation which is
characterised by unity of purpose.23 Famously, he used the example of a railroad, which
contains a technical element, the achievement of maximum freight capacity, and a legal
element, which might concern the responsibility of the railroad-operator for any negligently
caused deaths.24 Whilst the content of technical norms might be dictated by science,25 this
is not necessarily so, all that is needed is unity of purpose.
It is certainly true that the idea of unity of purpose can be abused by authoritarian
rgimes. Various rgimes have created a false or exclusive unity, which has had the eect of
rendering some people outside any form of protection and often condemned them to
death. This is not a fact that has escaped Marxists.26 But it does not follow that any form of
social regulation not based on homo juridicus leads towards totalitarianism. In his

20. Simmonds 2001, particularly pp. 27585.

21. Pashukanis 1980, p. 70.
22. For a neglected but excellent account, see Kinsey 1978, especially pp. 21820.
23. Pashukanis 1980, p. 60.
24. Ibid.
25. Ibid.
26. See, particularly, Neumann 1996, pp. 1348.
 Review Articles / Historical Materialism 17 (2009) 237299 295

examination of Eastern culture, Supiot does recognise that it is possible to articulate a

vision of man which while non-individualistic is also non-totalitarian. However, these
formulations still tend to dissolve individuals in a broader notion of society (p. 83). So,
although Supiot gestures towards a rapprochement between Western and non-Western
cultures, he maintains the typical liberal opposition between individualism and
communitarianism. An engagement with Marxism would have helped Supiot to realise
that there is a position beyond both individualism and communitarianism. This position
recognises that individuals are the product of dense webs of social relations and argues for
a mode of social regulation suitable for a world in which the free development of each is
the condition of the free development of all.27

Labour, technology and feudalism

This critique of Supiots philosophical position allows us to see some of the problems with
his more concrete analysis. Firstly, there are his claims about laws role in humanising
technology. At rst sight, Supiots position on these issues is quite appealing. Although he
stresses the close connection between law and technology, he refuses to argue that there is
any unilateral determination operating between the two (p. 113). Such a position is, of
course, useful, insofar as it represents an attempt at a materialist analysis that does not
descend into technological determinism. However, although Supiots description of the
mutual transformation is quite powerful, it is weaker on why law tracks technological
developments so closely. Supiot simply states that the purpose of law is to be placed between
humanity and technology, without really explaining why this is the case, so, whilst he
persuasively shows that law has closely tracked technological development, he is at a loss to
explain this relationship. This is where Pashukanis again becomes useful. In showing the
deep connection between law and exchange, he also shows that there is very little distance
between law and the labour-process. Precisely because the employment-relationship is the
commodity-exchange relationship par excellence, changes in its structure have almost
immediate legal consequences.28
Conversely, Supiots discussion of technology lacks any notion of agency. In his
discussions of the regulation of the working day, Supiot frequently argues that law objects
to certain states of aairs (p. 133), or law serves to limit (p. 135) certain practices. But, of
course, the law cannot act on its own, law is made by people (directly or indirectly). It is
useful here to turn to Marxs seminal account of the struggle to limit the working day.
Rather than endowing the law with agency, Marx shows in great detail that the legal
limits placed on the working day were only won at the end of a great struggle between
labour and capital.29 The virtue of this approach is that it recognises that law will not

27. Marx 1978, p. 491. For a fascinating ctional exploration of how such a system of
regulation might operate, see Miville 2000, pp. 869.
28. As Pashukanis notes, the commodity-form assumes a dual nature, economic and legal,
insofar as it always necessitates the recognition of the other party as a legal subject. This means
that any struggle around the conditions of work that is to say the contract of employment is
immediately a legal one; see Pashukanis 1980, p. 67. For the best if awed contemporary
Marxist account of labour-law, see Miville 2005, pp. 1019.
29. Marx 1999, pp. 16682.
296 Review Articles / Historical Materialism 17 (2009) 237299

necessarily have a humanising inuence on technology. Supiot adopts the typical position
of liberal legalism, whereby the problem is always identied with a lack of legal regulation,
rather than bad legal regulation.30 In recognising that law is a distinctive form through
which social conict is articulated, the Marxist approach is able to grasp that these conicts
will not always be won by progressive forces, hence law will not always humanise
technology, but will sometimes buttress its inhuman tendencies and perhaps even
exacerbate them.
This brings us nicely on to Supiots analysis of contemporary labour-law. Central to
Supiots analysis is that we are witnessing a re-feudalisation of the law. In order to properly
address this claim it is necessary that we disaggregate just how Supiot thinks that the law has
been transformed. The overarching theme that Supiot identies is that new contracts are
emerging that place a person . . . within the sphere of power of another persons, but without
thereby infringing, at least in formal terms, the principles of freedom and equality (p. 106).
To characterise this as a new development seems highly problematic. As Franz Neumann
noted in 1937, the legal person is frequently a mask which obscures the fact that private
property is the basis of master-slave relationships . This is particularly evident in the
labour-contract, where [t]he legal equality of the contractual partners hides their economic
inequality.31 The important point to note here is that right from the outset, the contract of
employment has been one which places a person under the power of another, whilst
maintaining the legal equality of both parties. Indeed, the particular dening type of
exploitation under capitalism the free worker alienating his labour-power to the capitalist
is only possible through the contract-form, which recognises the worker as a legal equal who
chooses to sell his labour-power. China Miville is exactly right therefore when he argues,
in another context, that [t]he notion that the relation at the heart of capitalist exploitation
is a feudal atavism is quite clearly untenable.32
It is dicult to know whether Supiot actually believes his more general claim. Immediately
after making it, Supiot does admit that the employment contract is a model for later
developments (p. 104). A charitable reading of Supiot would suggest that he cannot possibly
be saying the employment-contract itself represents a return to feudalism. This is because
the generalisation of the employment-contract represents the decisive break with feudalism,
where status and social position determined the exploitation of surplus-value. If Supiot
seriously believes that contracts placing a person under the power of another person
represent feudalism per se, then it seems feudalism never really went away. The more
charitable interpretation of Supiots work focuses on the transformation in the particular
shape of employment-contracts and the substantive obligations they entail.
Here perhaps, Supiots claims become more intelligible: essentially, he argues that what
is distinctive about these new contracts is that although they place a person with the power
of another individual, they do so without establishing a relationship of direct control. These
contracts, therefore, are designed to create bonds of allegiance, analogous to those of
vassalage. These new contracts are marked by very little direct managerial control, with
workers behaving as if they are independent contractors (p. 125). These claims are neither

30. For some excellent discussion of how this liberalism operates in international law see
Johns 2005 and Marks 2006.
31. Neumann 1996, p. 134.
32. Miville 2005, p. 106.
 Review Articles / Historical Materialism 17 (2009) 237299 297

new nor uncontroversial and this sort of account of the transformation of the employment-
relationship has become popular over the past ten years, particularly with the publication
of Hardt and Negris Empire and Multitude.
Thus, the usual objections apply here, and we can legitimately question how widespread
this transformation has really been and how important it is (both nationally and
internationally). Rather than dwell on these criticisms, which have been well-elaborated
elsewhere,33 this review will briey focus on whether these developments ought to be
termed feudal. This is a dicult exercise, insofar as there is no single essence of feudalism
(or for that matter capitalism) which can be used to designate a particular social relationship
as such. All that can really be done is to look for the dening features of any given mode
of production and see how far they are instantiated in the relationship. So what, precisely,
is it that makes labour (and its exploitation) under capitalism dierent from that which
preceded it? As Pashukanis notes, exploitation in general is in no way bound to the
exchange relation, it is only in bourgeois capitalist society that the proletarian gures as a
subject disposing of his labour power as a commodity.34 This is in contradiction to the
dening form of exploitation under feudalism, which was based on status. The dening
feature of capitalist wage-labour therefore is not the control that the capitalist exercises over
the labourer, but rather the free exchange of labour-power for a wage. On this reading,
whilst these new contracts may represent a change in the shape of traditional labour-
capital relationship, they are not a fundamental repudiation of this relationship.
Supiots makes a double error here. Firstly, he is unnecessarily privileging the substance
of a contractual agreement over the fact that it remains a contractual agreement. Secondly, he
seems argue that a relationship that existed under feudalism is ipso facto a feudal one, thus
ignoring the fact that social formations are never perfect instantiations of a given mode of
production but are composed of diering, contradictory elements. A deeper engagement
with Marxism would have allowed Supiot to analyse the dening features of feudalism, and
so avoided the mistake of designating any relationship which bears a similarity with one
that existed under feudalism as feudal.35

Conclusion
It is impossible in the short space of a review to cover all of the issues Homo Juridicus raises.
Perhaps most important amongst these is the particular role Supiot envisages for the state,
but there are also questions as regards regulation which deserve greater consideration. The
critical tone of this review may be misleading. Although Supiots book has many failings, it
is nonetheless a powerful one, which can be fruitfully engaged with on several levels.
Despite some of the blurbs on the dust-jacket, the book should not be read as a radical
critique of the law but, rather, a sophisticated restatement of classical liberalism, couched
in contemporary theoretical garb. This means that the book falls foul of the problems that
have always plagued liberalism. It is for this reason that it is so useful to counterpose Supiots

33. See e.g. Cameld 2007.

34. Pashukanis 1978, p. 45.
35. The obvious point to make here is that within limited bounds markets were tolerated
under feudalism, very few people would argue that, on this basis, markets are feudal.
298 Review Articles / Historical Materialism 17 (2009) 237299

ideas with those of Pashukanis, who whilst taking law and liberalism seriously subjected
them to a sustained historical and theoretical critique.
Whilst Homo Juridicus is not solely concerned with the law, it may be dicult for those
with no legal background to fully appreciate. Many of his claims require some background
knowledge of the continental legal tradition, such that even this reviewer (educated in the
common-law tradition) occasionally had trouble following the argument. As stated earlier,
there are also serious problems with the form of the argument, which could be much clearer.
Nonetheless, the book addresses some contemporary issues with great erudition, and, as such,
can protably be read by anyone interested in the legal direction of advanced capitalism.

Reviewed by Robert Knox,

robertjknox@googlemail.com

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